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Page 21, line 22, after ("diligence") insert ("or after due disclosure").

The noble Viscount said: My Lords, I wish to discuss the point of this amendment to make sure that the defence is not put at a disadvantage. I am sorry to tell your Lordships that the preparation of cases in the criminal courts does not always proceed as smoothly as it should. Cases come for trial, or very nearly reach it, without all the necessary preparations having been made. I do not wish to apportion blame; it is simply a fact. What concerns me as regards Clause 27(6) is the test of what a party could not have discovered with reasonable diligence.

Some of the circumstances which might lead to the re-opening of cross-examination already carried out on video could arise at a very late stage. There could be the disclosure of something, perhaps under public interest immunity, which had not previously been thought suitable for disclosure to the defence. There is a continuing duty on the prosecution not only up to, but also during the trial--and on the judge as well--to consider anything which is claimed to be protected by public interest immunity. If there is a change in the situation before the trial, but after the video cross-examination has taken place, then the existence of the material in question cannot possibly be known to the defence and not even reasonable diligence can allow the defence to discover that it existed. However, it would then be in the domain of the court. The defence will know about it, and it will have to persuade the judge that it can recall the witness for further cross- examination. I hope that this will be an extremely rare occurrence. It would be monstrously unfair in such circumstances if anything in the Bill were to prevent the court allowing the defence in a proper case to re-open the matter.

I move the amendment in order to explore the proposition with the noble Lord, Lord Williams. I am sure it is not intended to cut out an application from the defence, even at a late stage, if something which it had not expected arises and affects the way in which the

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cross-examination would have been carried out, had it been known on the video recording. I look forward to the noble Lord's explanation to make sure that there is no injustice built into the subsection as it now stands. I beg to move.

Lord Cope of Berkeley: My Lords, I have some sympathy for the amendment. The Law Society has recently been in touch with me. I have therefore tabled an amendment to a later clause which is intended to improve the disclosure for the defence in various ways. I shall come to it at a later stage, presumably on another day. I have sympathy with what the noble Viscount says about the difficulties of disclosure in some cases and his reason for moving the amendment.

Lord Williams of Mostyn: My Lords, it is always helpful to hear the views of those with practical experience, as the noble Viscount has, of regularly sitting and considering matters where these problems may arise. What he says is worth careful consideration. I cannot accept his example of late disclosure of material that had formerly been the subject of public interest immunity non-disclosure. It seems to me, as a first response, that if there were non-disclosure in such circumstances, then no reasonable diligence would have been able to discover that material. I do not believe that that will bite.

If it is agreeable both to the noble Viscount and your Lordships, I would like to think about this matter with some care to see if the phrasing is absolutely perfect. I put it very much in a neutral way. It may be that one ought to have an "interests of justice" test here so that one would not necessarily attach to the defendant the incompetence of his advisers. I take the noble Viscount's point. I shall think with some care about the general theme he has introduced. As I said, my immediate response is that his illustration in terms of non-disclosure in the public immunity context is not a danger. But there may be other dangers that I would like to think about and discuss with officials. I shall certainly ponder the matter with some care.

Viscount Colville of Culross: My Lords, I shall be very happy with an "interests of justice" test here. At the moment there is a burden on the defence which it may not be fair for it to discharge. If the noble Lord will be kind enough to do what he has promised and look at the matter again, with the possibility that we shall amend the clause, I believe that we will ensure that there is no injustice in a case of this kind. In response to that promise I beg leave to with the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford moved Amendment No. 43.

Leave out Clause 27.

The noble Lord said: My Lords, I seek to leave out Clause 43 entirely. I take some encouragement from what the noble Lord, Lord Williams of Mostyn, said a moment ago in recognising that there are certain dangers in the clause which he wishes to consider. The clause is completely unsatisfactory as it stands. I hope that the

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noble Lord's response to my amendment is not to believe that I am attempting to obstruct cross-examination and re-examination. I am addressing the practical difficulties which arise out of such a system.

The raison d'etre of the special measures is that the quality of evidence given by a witness is likely to be diminished by fear, distress or, under Clause 16(1), because of youth or mental incapacity. It has to be recognised that videoed evidence-in-chief and cross-examination on video is unsatisfactory as a way of proceeding and that the most satisfactory kind of evidence before a court, whether before magistrates or a jury, is that of a live witness whose body language, answers and responses can be judged by the tribunal in the appropriate setting. So one begins with a presumption that oral evidence given live is better in the generality of cases than video links of this kind.

The practical difficulties that arose when we discussed this clause on a previous occasion were acknowledged by the noble Lord, Lord Williams of Mostyn. The noble Lord said that in effect we had to make a start somewhere and that we should get matters under way and see how they work out.

Some of those difficulties remain. For example, in discussions on the two previous amendments there seemed to be an assumption that the defence would be applying for the cross-examination of a witness by way of video link. I should have thought that to be a very unlikely occurrence, and that those defending would wish to cross-examine, possibly through a video link, but not by means of a video-recording, and it would be the prosecution who would advance to the court a request for a direction that the cross-examination and re-examination should be recorded. So the approach would come first from the prosecution, not from the defence.

The question then arises: when would that application be made? Would it be made immediately the matter was committed for trial, or, under the new procedure, when it appeared in the Crown Court? Would an interview taken at the time of the original complaint then be produced and the prosecution advance to the judge: "This is our evidence-in-chief. Now we say that through fear and distress this should be the evidence before the jury and cross-examination should be by way of video"?

If it is at that early stage in the proceedings, what impact would it have on the defendant? The question arises: has he appointed counsel? As we know, counsel in a trial, or a solicitor in a magistrates' court, can be appointed at a late stage. Are the defendant's instructions final? Anyone with experience as an advocate in the criminal courts knows that a defendant often advances a completely untrue and futile story which his own advocate will quickly show to be unreliable and untruthful; and from his own advocate's discussion with him in conference it can sometimes be established that he actually has a better defence if he tells what he says is the real truth about what happened. Not long ago I had the experience of losing an appeal in the Court of Appeal and of my client then saying to me, "Now I want to tell you what actually happened".

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What he then told me at that time was a full defence to the original matter and was a much better foundation. So it is simply assumed that when a client is originally seen by his lawyer, solicitor or barrister, what he tells his lawyer will be the defence that ultimately emerges from that discussion at the trial itself.

Under subsection (6) of Clause 27, if a defendant were under pressure from his own side to say, "I understand now that what I said before is untrue and this is the truth", he would not be in a position to apply for cross-examination of a vulnerable witness and would be at a considerable disadvantage as a result. The insertion at some point in the clause of "in the interests of justice" or some other provision, as the noble Lord, Lord Williams of Mostyn, referred to a moment ago, may improve the protection that a defendant should have in all criminal proceedings.

I move this amendment simply on the basis that there may be circumstances where cross-examination and re-examination by way of video-recording is appropriate. However, I do not believe that sufficient thought has been given to what those circumstances are. I look forward to the re-think that the noble Lord has promised, and I hope will promise me when he responds to the amendment. I beg to move.

9 p.m.

Lord Ackner: My Lords, I entirely agree with the noble Lord that direct evidence would be much better than the use of video. However, as I understand it from discussions on previous legislation, the virtue of the video is to have the evidence when it is fresh instead of waiting until the court has convened and then taking the evidence direct. The virtue of the video, both in-chief and, to a lesser state, in cross-examination, is to have the material when it is fresh and therefore more likely to be reliable.

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